Safiya Malik

The High Court of Judicature at Allahabad, Single Bench of Justice Sandeep Jain held that an injunction may be issued against a property owner under Order 39 Rules 1 and 2 of the Civil Procedure Code, even when the principle of lis pendens under Section 52 of the Transfer of Property Act is applicable. Allowing the plaintiffs’ appeal, the Court set aside the trial court’s order and restrained the defendant from transferring, alienating, or creating third-party rights in the disputed land during the suit’s pendency. The dispute concerned an agreement to sell agricultural land in Gautam Buddha Nagar, where most of the sale consideration had already been paid. The Court further directed the trial court to decide the main suit within six months.

The dispute arose from an agreement to sell a parcel of land measuring 3,250 square yards located in village Mirzapur, Pargana Dankaur, District Gautam Buddha Nagar. The plaintiffs entered into a registered agreement to sell with the defendant in July 2022 for a consideration of ₹2.05 crore, of which ₹1.85 crore had already been paid. The balance ₹20 lakh was to be paid within three months, by October 2022, upon which the defendant was to execute a sale deed. The plaintiffs alleged that despite their readiness and willingness to pay the remaining amount, the defendant failed to execute the deed and attempted to sell the same land to third parties.

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The plaintiffs filed a suit for specific performance of the registered agreement to sell, supported by an interim injunction application under Order 39 Rules 1 and 2 of the Civil Procedure Code, seeking to restrain the defendant from alienating or creating third-party rights over the property. The defendant opposed the application, asserting that the amount received was a loan, not sale consideration, and that the agreement to sell was executed only as a security for repayment. He claimed ownership and possession of the property as a recorded tenure holder and expressed readiness to return the sum taken as loan.

The trial court rejected the plaintiffs’ application, holding that they had no ownership or possession over the land and that the agreement to sell did not create any title in their favour. It found that the balance of convenience did not lie with the plaintiffs, and since any transfer would be governed by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, no irreparable injury would result. The plaintiffs appealed this order before the Allahabad High Court.

The Court observed that the plaintiffs had sought only to prevent the defendant from transferring the property, not to protect possession or ownership. It recorded that “in the registered agreement to sell, it is itself mentioned that the disputed land was in possession of the defendant and its possession will be given to the plaintiffs at the time of execution of sale deed in their favour.”

Justice Sandeep Jain stated that “on the basis of the registered agreement to sell, no right, title and interest is created in favour of the vendee.” However, he noted that the injunction sought was “perfectly in accordance with law,” since it aimed to preserve the subject matter of the suit.

Referring to the Supreme Court’s decision in Ramakant Ambalal Choksi v. Harish Ambalal Choksi and others (2024) 11 SCC 351, the Court cited that “notwithstanding the Rule of lis pendens in Section 52 of the TP Act, there can be occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case.” It further quoted the Apex Court’s reasoning that while Section 52 addresses transfers during pendency of litigation, it “may not always be good enough to take fullest care of the plaintiffs’ interest vis-à-vis such a transfer.”

The Court noted that the trial court had erred by relying on the plaintiffs’ lack of possession or ownership to reject the injunction. It observed that “the above reasoning of the trial court is perverse and is liable to be set aside.” It further recorded that “in given circumstances, the relief of interim injunction can be granted in favour of the plaintiffs against the defendant for preventing the defendant from alienating or transferring the disputed property, even if the principle of lis pendens enumerated in Section 52 of the Transfer of Property Act is applicable.”

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The Court ordered that “this appeal is allowed. The impugned order dated 17.09.2025 is set aside.” It directed that “the plaintiffs’ application 6C-2 under Order 39 Rule 1 & 2 C.P.C. stands allowed.” Consequently, it restrained the defendant “from alienating, transferring or creating third party rights in the disputed land, during the pendency of the suit.”

 “The trial court is directed to decide the original suit preferably within a period of six months from the date of production of certified copy of this order, without affording unnecessary adjournments to the parties, on merits, in accordance with law.”

Advocates Representing the Parties:
For the Appellants: Aishwarya Pratap Shahi, Nipun Singh
For the Respondents: Krishna Mohan Garg

Case Title: Mahesh Kumar and Others v. Omaira Buildcon Proprietor Lalit Gogia
Neutral Citation: 2025: AHC:187262
Case Number: FAFO No. 2422 of 2025
Bench: Justice Sandeep Jain